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Myriad Genetics wins bid to patent human genes

Myriad Genetics, owner of patents related to genes linked to hereditary cancer risks, has won an Australian court ruling allowing it to patent isolated DNA, a first in Australia.

Federal Court Justice John Nicholas today in Sydney dismissed a 2010 lawsuit aimed to stop Myriad and Genetic Technologies from patenting a gene mutation associated with an increased risk of breast and ovarian cancers.

‘‘This case is groundbreaking,’’ Rebecca Gilsenan, a lawyer at Melbourne-based Maurice Blackburn, the firm representing the opponents, said in an e-mailed statement before today’s ruling. ‘‘No Australian court has been asked to consider the question of whether isolated human genes are patentable.’’

The issue has divided the global medical community with groups including the Association for Molecular Pathology and the American College of Medical Genetics arguing that Myriad is attempting to get legal ownership of parts of the human body.

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The issue returns to the US Supreme Court for a second time this year after the US Court of Appeals for the Federal Circuit twice ruled that genes can be patented.

The US high court agreed on Nov. 30 to hear the Association for Molecular Pathology’s appeal.

Royalty demands

Some scientists argue they have been stymied in researching new medicines and treatments because they may come up against demands for royalties or letters demanding they stop using patented inventions.

Companies such as Genomic Health have argued they can’t attract investment dollars if they can’t protect their research from competitors.

Cancer Voices Australia, a national organization representing cancer patients, and Yvonne D’Arcy, a Brisbane resident diagnosed with breast cancer, sued Myriad Genetics and Genetic Technologies to block the patenting of genes in the country.

Gene-sequencing breakthroughs are spawning a multibillion-dollar market for drugs and medical tests.

Myriad Genetics, based in Salt Lake City, argued in the Australian case its screening process, that includes an artificially made gene mutation mimicking one that makes people more susceptible to breast and ovarian cancers should be eligible for a patent.

'‘You can’t use this to build another human being,’’ David Shavin, Myriad Genetics’ lawyer, told Nicholas at the start of the trial in Sydney a year ago, referring to the process and mutation. ‘‘All you can use it for is to compare’’ normal and mutated genes."

Australian law allows for patents on artificially created products with economic benefits, including computer programs and business methods, Mr Shavin said.

‘‘The position in the United States is similar to, but not the same as in Australia,’’ he said.

The Myriad Genetics process copies gene codes from people, the plaintiffs’ lawyer David Catterns told the judge in his opening statement.

If the plaintiffs isolated a mutation in a gene from a person’s blood, they would infringe the patent, Catterns said.

‘‘The patent involves precisely the code that occurs in nature,’’ he said. ‘‘This is not patentable on traditional principles.’’